The New York State Association of Criminal Defense Lawyers recently published its winter edition of
Atticus, showcasing the two impressive honorees at the upcoming annual dinner of the NYSACDL
Foundation, Chief Judge Jonathan Lippman and David Ruhnke, Esq. In it, I also have an article addressing
three recent Second Circuit decisions of note: United
States v. Banki (reach of a regulatory crime narrowed under the rule
of lenity); United States v. Lee (government abused
its authority when it withheld a third “acceptance of responsibility” point
because the defendant had challenged errors in his presentence report); and United States v. Rivera (ameliorating “shameful
inequalities” of crack-cocaine disparity by applying the rule of lenity to an
ambiguous sentencing guideline). It is
available here.

The NYSACDL Foundation’s annual dinner is this Thursday, January 26, at
the Prince George Ballroom.If last
year’s elegantly fast-paced event is anything to go by, this will be a
memorable celebration of two champions of criminal defendants’ rights and
indigent defendants in particular, and the New YorkState
criminal defense community in general.Tickets (which are fast disappearing) are available here.

Finally, a belated Happy New Year to my loyal readers from
snowy Minnesota,
where I have assumed a position as Practitioner in Residence at the
University of Minnesota Law School for the 2011-12 academic year.

The NYSACDL has published its latest edition of Atticus, focusing on the organization’s often unsung and unknown efforts to influence the legislative process. It includes my article addressing three recent Second Circuit decisions, including Capers (setting up some serious hurdles to the admission of statements obtained through a “two-step”– question first, Mirandize later – interrogation procedure), Cossey (“a sentencing decision that relies on factual findings that were unsupported in the record . . . seriously affects the fairness, integrity, and public reputation of judicial proceedings”), and Brown (“when a claim of ineffective assistance of counsel is first raised in the district court prior to the judgment of conviction, the district court may, and at times should, consider the claim at that point in the proceeding.”)

It’s bad enough to have been an investor with Bernie Madoff, but to have that investment decision ridiculed in the press adds insult to injury. And there’s the rub – or at least one of them – for Madoff’s victims: how to achieve some catharsis through Madoff’s sentence, while avoiding any uncomfortable and embarrassing public scrutiny. S.D.N.Y. Judge Chin’s response has been clear. If Madoff’s victims want to have their say on his sentence, they must do so in public. In an order dated May 20, 2009, Judge Chin advised victims that they may submit “written statements” as part of their right to be “reasonably heard” at sentencing and may email the government if they wish to be heard orally at sentencing, but they should know that these letters and emails “will be made part of the public record.” His order reflects the tension between the public’s right of access to judicial documents (which include victims’ emails solicited by the court) and the victims’ right to privacy, something which must be “respect[ed]” under the Justice for All Act of 2004. Victims’ Privacy vs. Public’s Right of Access

The intersection of these competing issues is the subject of a notable decision by Judge Chin on the disclosure of victims’ emails he received prior to Madoff’s guilty plea, United States v. Madoff, 2009 WL 1678097 (S.D.N.Y. June 17, 2009). Prior to that plea, the court had issued an order advising victims how they “could express their desire to be heard on the issues raised in this case.” Subsequently, several news organizations sought access to the emails sent in response to this order, including all identifying information on the emails. Since he had not previously warned the authors that their communication may be disclosed, Judge Chin directed the government to canvas the authors’ views on disclosure. Some wanted to maintain their privacy, some were happy to go public, and most didn’t respond at all. Reviewing the law on access to judicial documents and the right to privacy, the court concluded that identifying information would be sealed as to emails where their authors asserted their right to privacy, but where the authors didn’t bother to respond, the entirety of the email, including identifying information, would be disclosed. “Given the victims’ opportunity to object, the very public nature of the case, and the sentiments expressed in many of the emails, I conclude that the presumption of access outweighs the privacy interests of the victims who did not object to the unsealing of their correspondence.” In the same decision, Judge Chin ruled that other documents would remain under seal where disclosure could jeopardize the government’s efforts to recover assets for victims.

Comment

This is an important case on a victim’s right to privacy and to advance notice of public disclosure of communications with the court. It is also an important case for defendants, since there is no suggestion in Judge Chin’s decision that victims’ letters submitted to him in connection with the actual sentencing should be anything but publicly disclosed in their entirety, along with all identifying information. Victims’ letters can have a searing impact at sentencing. At least if subject to the crucible of public scrutiny, the authors may temper some of their (understandable) raw emotion and desire for revenge.

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As this blog has noted in the past, see here and here, presentence reports and sentencing materials can contain very sensitive information that both the government and the defense may want to keep under seal. The right of third parties, including representatives of news organizations, to have access to these materials is the issue in two notable cases, one relating to the disclosure of possibly inaccurate financial information provided by the defendant during the sentencing process, and the other relating to the disclosure of a high-profile defendant’s cooperation efforts.

Disclosure of PSR Section Dealing with Finances

In United States v. Watkins, 2009 WL 1598406 (S.D.N.Y. June 9, 2009) - a study in stupidity or audacity - the third-party petitioner, a defendant in a civil suit commenced by Watkins, sought access to the portions of Watkins’ presentence report dealing with his financial situation. In his criminal case, Watkins had pleaded poverty, received an appointed lawyer and escaped the imposition of any fine; in his civil case, he claimed that he had invested $600,000 in a real estate venture after his sentencing. Citing the “ends of justice” and the “well-established doctrine of judicial estoppel,” SDNY Judge Rakoff held that “where, as here, the accuracy of information relied upon by this and other courts is called into question, the otherwise unflagging confidentiality of presentence reports and probation records must bend.”

Sealing of Sentencing Documents Relating to Defendant's Cooperation

In United States v. Park, 2009 WL 1515660 (S.D.N.Y. June 1, 2009), SDNY Judge Chin denied the New York Times’ motion to unseal redacted portions of letters and transcripts relating to the sentencing of Tongsun Park, who had been convicted after trial of being an unregistered foreign agent for Iraq in the U.N. oil-for-food scandal. Weighing the public’s right of access against the countervailing factors of “the danger of impairing law-enforcement, judicial efficiency, and privacy interests,” the court found that here, the balance tipped in favor of maintaining the materials under seal, since they related to Park’s cooperation in an on-going investigation – though not before the Times’ motion had resulted in some significant additional disclosures (which just underlines the wisdom of litigating like Joe “throw the ball” Nameth). Lawyers: Michael Kim, Francisco Navarro, Kobre & Kim LLP (defendant); David McCraw (New York Times Company); AUSA Pablo Quiñones

Should a judge seal portions of a defendant’s sentencing memorandum that paint a co-defendant as a wife-abuser? No, WDNY Judge Larimer, holds in United States v. Roeder, 2009 WL 385448 (W.D.N.Y. February 13, 2009). In support of her request for a sentence of probation – well below the applicable guideline range of 41-51 months – Constance Roeder's sentencing memorandum portrayed her relationship with co-defendant husband John Nicolo as abusive, and attached several letters from Roeder’s siblings describing Roeder’s relationship with Nicolo, as well as private letters from Nicolo to Roeder, which apparently demonstrated the disintegration of the relationship. Judge Larimer concluded that sealing the memorandum would unfairly disadvantage Nicolo, pointing out that Roeder undoubtedly wanted to prevent Nicolo from gaining access to, and thereby disputing, the information that made him look bad.

While access to Nicolo could have been permitted by means of a limited sealing order, the court ordered that all this information would be publicly filed. Since Roeder was seeking leniency, the public had a right to know “the basis upon which counsel seeks a reduced sentence.”

The court, however, granted Ms. Roeder’s motion to seal confidential medical and mental health information: “Such documents involving patient/client privileges and confidential medical and psychological information should be sealed. Such letters are often submitted directly to the probation officer and if that had been the case, the documents clearly would have been shielded from public access. To protect the confidentiality of this relationship between physician and patient, I believe it is important that such material be sealed.”

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After the Second Circuit threw out the BOP’s rule limiting an inmate’s placement in a halfway house to the lesser of the last ten percent or six months of the sentence (Levine v. Apker, 455 F.3d 71 (2d Cir. 2006)), the BOP said that it would endeavor to honor a judge’s recommendation that a defendant be directly designated to a halfway house (also known as a residential re-entry center) for sentences of twelve months or less. But the skeptics among us wondered how often that would happen in practice. Well, in United States v. Iaria, 2008 WL 3842517 (E.D.N.Y. August 11, 2008) (Murray Law LLC’s case), EDNY Judge Weinstein sentenced the defendant to six months in custody, but at defense counsel’s request, agreed to recommend RRC designation. And lo, the BOP obliged, and Mr. Iaria – a father convicted of illegal gambling, and therefore a very appropriate candidate for this placement – has recently completed his sentence at an RRC in Brooklyn, which permitted him to maintain gainful employment throughout the custodial period.

In an era when our prisons are bursting at the seams with first-time, non-violent offenders, let’s hope more judges recommend direct designation to RCCs (or even impose probation with a condition of community confinement, so that the issue is not left to the discretion of the Bureau of Prisons).

New York federal courts continue to wrestle with the competing interests of a defendant’s right to privacy and the public’s right to know the facts influencing a judge’s sentencing decisions. In United States v. Strevell, 2009 WL 577910 (N.D.N.Y. March 4, 2009), a newspaper sought to unseal sentencing documents in a high profile case involving the misuse of public funds by the former director of the Institute for Entrepreneurship, a not-for-profit entity created by SUNY and funded by state and federal grants. The defendant, Felix Strevell, had pleaded guilty and cooperated with the government on other investigations. The fact of his cooperation was made public by the prosecutor, but both the government and the defendant sought to maintain the confidentiality of the manner in which he cooperated and certain other facts.

Holding

NDNY Judge Sharpe, in rendering a compromise decision to unseal some sentencing documents and seal or release other documents in redacted form, begins by setting forth the judicial standard used to determine when sealing is appropriate: “Judicial documents enjoy a presumption of access, which can be rebutted by countervailing factors that outweigh public interests.” Those factors include the protection of law enforcement techniques, sources, witnesses, police officers, grand jury secrecy, national security, and the protection of certain heightened privacy interests in medical records, financial and business records and family matters. The court ruled that the determination should be fact specific and narrowly tailored to preserve the secrecy of only those facts that implicate the higher privacy values listed above. The court granted the newspaper’s request for a “sunshine date,” or date upon which the sealing order would expire, and ordered that the sealing order expire in one year, subject the right of the government or defendant to apply for an order renewing the sealing order upon a showing of good cause.

Comment

The public’s right to know the facts that motivate a judicial decision is well ensconsed in First Amendment jurisprudence. However, our criminal justice system would be impaired if both the government and the defendants were forced to publicly reveal every fact that affected a sentencing decision. Defendants and witnesses would be reluctant to cooperate and fearful of retribution. Ongoing investigations would be compromised. Personal and embarrassing information, relevant to the sentencing decision, might not be provided to the court. Judge Sharpe appropriately recognized this dilemma and crafted a balanced response that allowed the release of certain facts and protected others. The use of a “sunshine” date is especially interesting, as a way of minimizing the adverse effects of this information being disseminated only for the momentary thrill of salacious detail.